Sunday, July 15, 2007

Human Security Act Is A Dangerous Law, But Dangerous To Whom?

Juan Manuel Diokno, son of the great Civil Libertarian Jose W. Diokno, writes in PDI Talk of the Town Sunday that the Human Security Act of 2007 (2007 HSA) which comes into effect today, is a "dangerous law":
Worse, the HSA is a dangerous law. It authorizes preventive detention, expands the power of warrantless arrest, and allows for unchecked invasion of our privacy, liberty and other basic rights. Persons merely suspected of engaging in terrorism may be arrested without warrant and detained without charges.

They may be placed under house arrest, prohibited from using their cell phones, computers and any other means of communication, even when they are granted bail on the ground that evidence of guilt is not strong. They may also be subjected to surveillance and wiretapping, as well as examination, sequestration and freezing of bank deposits and other assets, on mere suspicion that they are members of a “terrorist organization.”

Paradoxically, I agree that 2007HSA is a "dangerous law" but I think it is far more dangerous to those trying to fight the terrorist threat than the terrorists themselves!

To support this claim, let me point out a fact that anyone can check for themselves:

The word PENALTY occurs exactly 45 times in the text of 2007 H.S.A.

The first four times we see the word PENALTY in Sections 3, 4, 5, and 6, it refers to (1) 40 years imprisonment for those found guilty of terrorism; (2) 40 years for conspiracy to commit terrorism; (3) 17-20 years for being an accomplice; and (4) 10-12 years for being an accessory to a crime of terrorism. The next 41 times we see the word PENALTY it refers to imprisonment and fines that will be incurred by law enforcers and other government officials for various offenses against 2007 H.S.A.!

If you look at each of these last 41 occurrences, you will find directly a compleat refutation of every single one of Atty. Diokno's criticisms of the law.

Penalties Against Terrorists in 2007 HSA:
SECTION 3. Terrorism. –shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

SECTION 4. Conspiracy to Commit Terrorism. – Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment.

SECTION 5. Accomplice. –shall suffer the penalty of from seventeen (17) years, four (4) months one day to twenty (20) years of imprisonment.

SECTION 6. Accessory. –shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

Penalties, Fines and Sanctions Against Law Enforcers in 2007 HSA:

SECTION 10. Effective Period of Judicial Authorization. If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify the person subject of the surveillance, interception and recording of the termination of the said surveillance, interception and recording. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify the person subject of the surveillance, monitoring, interception and recording as specified above.

SECTION 11. Custody of Intercepted and Recorded Communications. – Any person who removes, deletes, expunges incinerates, shreds or destroys the items enumerated above shall suffer a penalty of not less than six (6) years and one day to twelve (12) years of imprisonment.

SECTION 12. Contents of Joint Affidavit. – Any person, police or law enforcement officer who violates any of the acts proscribed in the preceding paragraph shall suffer the penalty of not less than ten (10) years and one day to twelve (12) years of imprisonment.

SECTION 13. Disposition of Deposited Materials. – Any person, law enforcement official or judicial authority who violates his duty to notify in writing the persons subject of the surveillance as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.

SECTION 14. Application to Open Deposited Sealed Envelop or Sealed Package. – Any person, law enforcement official or judicial authority who violates his duty to notify as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.

SECTION 16. Penalty for Unauthorized or malicious Interceptions and/or Recordings. – Any police or law enforcement personnel who, not being authorized to do so by the authorizing division of the Court of Appeals, tracks down, taps, listens to, intercepts, and records in whatever manner or form any communication, message, conversation, discussion, or spoken or written word of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

In addition to the liability attaching to the offender for the commission of any other offense, the penalty of ten (10) years and one day to twelve (12) years of imprisonment and the accessory penalty of perpetual absolute disqualification from public office shall be imposed upon any police or law enforcement personnel who maliciously obtained an authority from the Court of Appeals to track down, tap, listen to, intercept, and record in whatever manner or form any communication, message, conversation, discussion, or spoken or written words of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism: Provided, That notwithstanding Section 13 of this Act, the party aggrieved by such authorization shall be allowed access to the sealed envelope or sealed package and the contents thereof as evidence for the prosecution of any police or law enforcement personnel who maliciously procured said authorization.

SECTION 18. Period of Detention Without Judicial Warrant of Arrest. –The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph.

SECTION 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority Within Three (3) Days. – The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three (3) days.

SECTION 22. Penalty for Violation of the Rights of a Detainee. – Any police or law enforcement personnel, or any personnel of the police or other law enforcement custodial unit that violates any of the aforesaid rights of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

Unless the police or law enforcement personnel who violated the rights of a detainee or detainees as stated above is duly identified, the same penalty shall be imposed on the police officer or head or leader of the law enforcement unit having custody of the detainee at the time the violation was done.

SECTION 23. Requirement for an Official Custodial Logbook and Its Contents. – The police or other law enforcement custodial unit who fails to comply with the preceding paragraph to keep an official logbook shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

SECTION 25. Penalty for Threat, Intimidation, Coercion, or Torture in the Investigation and Interrogation of a Detained Person. – Any person or persons who use threat, intimidation, or coercion, or who inflict physical pain or torment, or mental, moral, or psychological pressure, which shall vitiate the free-will of a charged or suspected person under investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of twelve (12) years and one day to twenty (20) years of imprisonment.

When death or serious permanent disability of said detained person occurs as a consequence of the use of such threat, intimidation, or coercion, or as a consequence of the infliction on him of such physical pain or torment, or as a consequence of the infliction on him of such mental, moral, or psychological pressure, the penalty shall be twelve (12) years and one day to twenty (20) years of imprisonment

SECTION 30. Effective Period of Court Authorization to Examine and Obtain Information on Bank Deposits, Accounts, and Records. – If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify in writing the person subject of the bank examination and freezing of bank deposits, placements, trust accounts, assets and records. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify in writing the person subject of the bank examination and freezing of bank deposits, placements, trust accounts, assets and records.

Any person, law enforcement official or judicial authority who violates his duty to notify in writing as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.

SECTION 32. Contents of Joint Affidavit. – Any person who copies, removes, deletes, expunges incinerates, shreds or destroys the items enumerated above shall suffer a penalty of not less than six (6) years and one day to twelve (12) years of imprisonment.

SECTION 33. Disposition of Bank Materials. – Any person, law enforcement official or judicial authority who violates his duty to notify in writing as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.

SECTION 36. Penalty for Unauthorized or Malicious Examination of a Bank or a Financial Institution. – Any person, police or law enforcement personnel who examines the deposits, placements, trust accounts, assets, or records in a bank or financial institution of: (1) a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, (2) a judicially declared and outlawed terrorist organization, association, or group of persons, or (3) a member of such organization, association, or group of persons, without being authorized to do so by the Court of Appeals, shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

In addition to the liability attaching to the offender for the commission of any other offense, the penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or law enforcement personnel, who maliciously obtained an authority from the Court of Appeals to examine the deposits, placements, trust accounts, assets, or records in a bank or financial institution of: (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) a judicially declared and outlawed terrorist organization, association, or group of persons, or (3) a member of such organization, association, or group of persons: Provided, That notwithstanding Section 33 of this Act, the party aggrieved by such authorization shall upon motion duly filed be allowed access to the sealed envelope or sealed package and the contents thereof as evidence for the prosecution of any police or law enforcement personnel who maliciously procured said authorization.

SECTION 37. Penalty of Bank Officials and Employees Defying a Court Authorization. – An employee, official, or a member of the board of directors of a bank or financial institution, who refuses to allow the examination of the deposits, placements, trust accounts, assets, and records of: (1) a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, (2) a judicially declared and outlawed terrorist organization, association, or group of persons, or (3) a member of such judicially declared and outlawed organization, association, or group of persons in said bank or financial institution, when duly served with the written order of the authorizing division of the Court of Appeals, shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

SECTION 38. Penalty for False or Untruthful Statement or Misrepresentation of Material Fact in Joint Affidavits. – Any false or untruthful statement or misrepresentation of material fact in the joint affidavits required respectively in Section 12 and Section 32 of this Act shall constitute a criminal offense and the affiants shall suffer individually the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

SECTION 39. Seizure and Sequestration. – Any person who unjustifiably refuses to follow the order of the proper division of the Court of Appeals to allow the person accused of the crime of terrorism or of the crime of conspiracy to commit terrorism to withdraw such sums from sequestered or frozen deposits, placements, trust accounts, assets and records as may be necessary for the regular sustenance of his or her family or to use any of his or her property that has been seized, sequestered or frozen for legitimate purposes while his or her case is pending shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

SECTION 41. Disposition of the Seized, Sequestered and Frozen Bank Deposits, Placements, Trust Accounts, Assets and Record. – If the person suspected of or charged with the crime of terrorism or conspiracy to commit terrorism is found, after his investigation, to be innocent by the investigating body, or is acquitted, after his arraignment or his case is dismissed before his arraignment by a competent court, the seizure, sequestration and freezing of his bank deposits, placements, trust accounts, assets and records shall forthwith be deemed lifted by the investigating body or by the competent court, as the case may be, and his bank deposits, placements, trust accounts, assets and records shall be deemed released from such seizure, sequestration and freezing, and shall be restored to him without any delay by the bank or financial institution concerned without any further action on his part. The filing of any appeal on motion for reconsideration shall not state the release of said funds from seizure, sequestration and freezing.

If the person charged with the crime of terrorism or conspiracy to commit terrorism is convicted by a final judgment of a competent trial court, his seized, sequestered and frozen bank deposits, placements, trust accounts, assets and records shall be automatically forfeited in favor of the government.

Upon his or her acquittal or the dismissal of the charges against him or her, the amount of Five Hundred Thousand Pesos (P500,000.00) a day for the period in which his properties, assets or funds were seized shall be paid to him on the concept of liquidated damages. The amount shall be taken from the appropriations of the police or law enforcement agency that caused the filing of the enumerated charges against him or her.

SECTION 42. Penalty for Unjustified Refusal to Restore or Delay in Restoring Seized, Sequestered and Frozen Bank Deposits, Placements, Trust Accounts, Assets and Records. – Any person who unjustifiably refuses to restore or delays the restoration of seized, sequestered and frozen bank deposits, placements, trust accounts, assets and records of a person suspected of or charged with the crime of terrorism or conspiracy to commit terrorism after such suspected person has been found innocent by the investigating body or after the case against such charged person has been dismissed or after he is acquitted by a competent court shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

SECTION 43. Penalty for the Loss, Misuse, Diversion or Dissipation of Seized, Sequestered and Frozen Bank Deposits, Placements, Trust Accounts, Assets and Records. – Any person who is responsible for the loss, misuse, diversion, or dissipation of the whole or any part of the seized, sequestered and frozen bank deposits, placements, trust accounts, assets and records of a person suspected of or charged with the crime of terrorism or conspiracy to commit terrorism shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.

SECTION 44. Infidelity in the Custody of Detained Persons. – Any public officer who has direct custody of a detained person under the provisions of this Act and who by his deliberate act, misconduct, or inexcusable negligence causes or allows the escape of such detained person shall be guilty of an offense and shall suffer the penalty of: (a) twelve (12) years and one day to twenty (20) years of imprisonment, if the detained person has already been convicted and sentenced in a final judgment of a competent court; and (b) six (6) years and one day to twelve (12) years of imprisonment, if the detained person has not been convicted and sentenced in a final judgment of a competent court.

SECTION 46. Penalty for Unauthorized Revelation of Classified Materials. – The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any person, police or law enforcement agent, judicial officer or civil servant who, not being authorized by the Court of Appeals to do so, reveals in any manner or form any classified information under this Act.

SECTION 47. Penalty for Furnishing False Evidence, Forged Document, or Spurious Evidence. – The penalty of twelve (12) years and one day to twenty (20) years of imprisonment shall be imposed upon any person who knowingly furnishes false testimony, forged document or spurious evidence in any investigation or hearing under this Act.

SECTION 50. Damages for Unproven Charge of Terrorism. – – Upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of Five Hundred Thousand Pesos (P500,000.00) for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation. The amount of damages shall be automatically charged against the appropriations of the police agency or the Anti-Terrorism Council that brought or sanctioned the filing of the charges against the accused. It shall also be released within fifteen (15) days from the date of the acquittal of the accused. The award of damages mentioned above shall be without prejudice to the right of the acquitted accused to file criminal or administrative charges against those responsible for charging him with the case of terrorism.

Any officer, employee, personnel, or person who delays the release or refuses to release the amounts awarded to the individual acquitted of the crime of terrorism as directed in the paragraph immediately preceding shall suffer the penalty of six (6) months of imprisonment.

If the deductions are less than the amounts due to the detained persons, the amount needed to complete the compensation shall be taken from the current appropriations for intelligence, emergency, social or other funds of the Office of the President.

In the event that the amount cannot be covered by the current budget of the police or law enforcement agency concerned, the amount shall be automatically included in the appropriations of the said agency for the coming year.

Objectively speaking therefore, it appears that there are four (4) provisions in which terrorists are "penalized" for terrorist acts and twenty-five (25) provisions that penalize law enforcers for violations of the human rights protections that are amply, more than amply, contained and made manifest in the law.


No wonder Satur Ocampo and Nene Pimentel have been warning the administration against trying to enforce this law. As I said yesterday: It's a booby-trapped law!

4 comments:

manuelbuencamino said...

Like I said, if you get the kind of anti=terror law you have wet dreams over, is there a guaarantee it will stop terrorist acts?

And if it does not, are you going to ask for even tougher anti-terror laws?

At what point do you say ebough is enough (as far as ever tougher terror laws are concerned)?

DJB Rizalist said...

mb,
your reasoning is very strange. look at any law like that against murder or rape or kidnapping.

Shall we repeal those and give up on them just because murder, rape and kidnapping have not been stopped by the existence of the laws?

Do we say "enough is enough" let's just get rid of the laws on murder?

(Say, you need to get a real sex life if you're getting nocturnal emissions.)

manuelbuencamino said...

read my question carefully and maybe you'll find a sensible answer.

The answer to your analogy, if that's the right word, is that the laws against murder andd rape etc. are in the books and remain there. No idiot is going around complaining that citizens have to surrender their civil liberties or freedoms so that those crimes can be prevented.

The anti terror is different. People like you will ask for toughening the law when terrorist acts continue to happen.

That's the difference I was hoping you would address.

When will you have an anti terror law that you will be happy with? At what point do you say we've taken away enough of your civil liberties and now we can do our job.

domingo said...

“Worse, the HSA is a dangerous law. It authorizes preventive detention, expands the power of warrantless arrest, and allows for unchecked invasion of our privacy, liberty and other basic rights. Persons merely suspected of engaging in terrorism may be arrested without warrant and detained without charges.”-- Juan Manuel Diokno

There’s another “law” (if you can still call it that) equally as “dangerous.” The Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides:

“Sec. 18. Contempt. The Committee, by a vote of a majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively. A contempt of the Committee shall be deemed a contempt of the Senate. Such witness may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself of that contempt.”

In other words, this rule authorizes the INDEFINITE DETENTION “Without Judicial Warrant of Arrest,” through the Senate Sergeant-at-Arms as custodian, of “any witness before [a Senate Committee] who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively.”

The term “any witness,” by the way, included Sec. Norberto Gonzalez and PCGG Chair Camilo Sabio, who were both detained ("without charges") for well over a month, or definitely over the maximum of THREE days now allowed under Sec. 18 of the Human Security Act of 2007.

Human Rights advocates and the media were eerily silent then while these two detainees languished, publicly humiliated and deprived of their liberty; so why all the fuss now?

Does the constitutional command, “No person shall be deprived of … liberty … without due process of law,” apply only to “persons” the law defines as terrorists?

Punishment (particularly to “punish for contempt,” tantamount to "punishment without trial” or punishment “without due process of law”) is too serious a matter to be entrusted to the political branches of government; let the Judiciary assume the duty the Constitution commands it to wield.

The Senate (and the House) should adopt the solution proffered by the U.S. Congress in 2 U.S.C. 192 (identical to Sec. 150 Revised Penal Code?), and let the separate, co-equal Court try, decide and punish after a "judicial" inquiry has been concluded.

Allow me to quote the U.S. Supreme Court decision in Watkins v. United States, 354 U.S. 178 (1957) citing this solution:

"MR. CHIEF JUSTICE WARREN delivered the opinion of the Court ...

"Since World War II, the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House. The sanction there imposed is imprisonment by the House until the recalcitrant witness agrees to testify or disclose the matters sought, provided that the incarceration does not extend beyond adjournment. The Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law.

"The appropriate statute is found in 2 U.S.C. 192. It provides:[See also 193 and 194]

"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."

"In fulfillment of their obligation under this statute, the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases ..."

In fact, even under the current contempt proceedings against aides of U.S. Pres. Bush (Harriet E. Miers, for instance), “Democratic lawmakers have not displayed an appetite for reviving the practice,” claimed as the "inherent contempt" power, “to hold its own trials and even jail those found in defiance of Congress.” (Washington Post, "Broader Privilege Claimed In Firings," 20 July 2007)

So, I hope Juan Manuel Diokno will also look into the INDEFINITE DETENTION and ARREST WITHOUT WARRANT--clearly a deprivation of “liberty”--this “dangerous law” authorizes the Senate to “practice” with impunity upon “any witness,” even if the person detained and arrested is a “friend” of the “enemy,” Gloria Macapagal Arroyo.

It is pertinent to repeat Thomas Paine’s words, Justice Rutledge cited, dissenting in the classic “command responsibility” case of In re Yamashita 327 U.S. 1 (1946):

“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach himself.”